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Employers' Practical Guide to the ADA

The Employers' Practical Guide to the Americans with Disabilities Act is a summary of some of the most frequent issues that employers have regarding accommodations and ADA compliance. The information has been divided into 4 sections - "Americans with Disabilities Act Basics," "Applications and Interviews," "Employees," and "Employees on Leave and Former Employees." You can expand these sections below.

If you have an issue that is not addressed in the Guide or if you want to discuss an issue in more detail, please contact us.

ADA Basics: This section provides answers to basic questions about the ADA. Most of the answers come from formal and informal guidance from the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA. Information covered includes the following: What is the ADA? Who must comply with Title I of the ADA? Who is protected by Title I of the ADA? What is a reasonable accommodation?

Applications and Job Interviews: The ADA applies to all aspects of employment, including job advertisements, job applications, job interviews, and post-offer medical examinations. Although many of the ADA rules that apply to applicants and new-hiresare the same as the rules for employees, there are some differences. This section discusses the differences.

Employees: One of the key non-discrimination requirements of Title I of the ADA is the obligation to provide reasonable accommodation for employees with disabilities. This section provides information about what policies and procedures might be useful, how to recognize and handle accommodation requests, how to determine effective accommodations, and what types of accommodations might be reasonable (work-site accessibility; job restructuring; modified work schedules and leave; modified policies; equipment and services).

Employees on Leave and Former Employees: The ADA requires employers to provide accommodations to ensure that employees with disabilities receive equal benefits of employment. For employees on leave and former employees, benefits of employment may include health and disability insurance, job protection (reductions in force and layoffs), and bonuses and promotions.

ADA Basics

This section provides answers to basic questions about the employment provisions of the ADA. Most of the answers come from formal and informal guidance from the Equal Employment Opportunity Commission (EEOC), the federal agency that regulates the employment provisions of the ADA. When available, links to the EEOC guidance are provided.

What is the ADA?

The ADA is a federal civil rights law that was passed in 1990 and went into effect beginning in 1992. Its purpose is to protect people with disabilities from discrimination in employment, in the programs and activities offered by state and local governments, and in accessing the goods and services offered in places like stores, hotels, restaurants, football stadiums, doctors' offices, beauty parlors, and so on. The focus of this guide is Title I of the ADA, which prohibits discrimination in employment and requires employers to provide reasonable accommodations for qualified applicants and employees with disabilities.

Who must comply with Title I of the ADA?

Only "covered entities" must comply with Title I of the ADA. The term covered entities includes employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. For simplicity, this guide will refer to covered entities as "employers." For more information about covered entities, see the EEOC Compliance Manual: Covered Entities.

The term employee means, "an individual employed by an employer." The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance and other factors. For additional information about the definition of employee, see the EEOC Compliance Manual: Who Is An Employee?.

The term disability means: (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of a physical or mental impairment that substantially limited one or more major life activities, and (3) being regarded as having such an impairment.

What is a reasonable accommodation?

A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity. An equal employment opportunity means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to an average similarly-situated employee without a disability. The ADA requires reasonable accommodation in three aspects of employment: 1) to ensure equal opportunity in the application process, 2) to enable a qualified individual with a disability to perform the essential functions of a job, and 3) to enable an employee with a disability to enjoy equal benefits and privileges of employment. Examples of reasonable accommodations include making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; and reassignment to a vacant position. For additional information about reasonable accommodation under the ADA, visit the EEOC'sReasonable Accommodation and Undue Hardship.

Applications and Interviews

The ADA applies to all aspects of employment, including job advertisements, job applications, job interviews, and post-offer medical examinations. Although many of the ADA rules that apply to applicants and new-hires are the same as the rules for employees, there are some differences. This section discusses the differences.

Job Advertisements and Applications

1. What information do employers have to provide about the ADA on job advertisements and job applications?

No specific information about the ADA is required on job advertisements or job applications. However, the EEOC advises employers to include information about the essential functions of the job in job announcements, advertisements, and other recruitment notices because specific information about essential functions will attract applicants, including individuals with disabilities, who have appropriate qualifications.

2. Does the ADA require affirmative action in the hiring of people with disabilities?

No. The ADA is a nondiscrimination law. It does not require employers to undertake special activities to recruit people with disabilities. However, it is consistent with the purpose of the ADA for employers to expand their "outreach" to sources of qualified candidates with disabilities. Recruitment activities that have the effect of screening out potential applicants with disabilities may violate the ADA.

For example: If an employer conducts recruitment activity at a college campus, job fair, or other location that is physically inaccessible, or does not make its recruitment activity accessible at such locations to people with visual, hearing or other disabilities, it may be liable if a charge of discrimination is filed.

3. Does the ADA allow affirmative action in the hiring of people with disabilities?

Employers may invite applicants to voluntarily self-identify for purposes of the employer's affirmative action program if the employer is undertaking affirmative action because of a federal, state, or local law that requires affirmative action for individuals with disabilities, or the employer is voluntarily using the information to benefit individuals with disabilities.

According to the EEOC, if an employer invites applicants to voluntarily self-identify in connection with providing affirmative action, the employer must state clearly that the information requested is used solely for affirmative action purposes, that it is being requested on a voluntary basis, that it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with the ADA.

4. Where can employers find qualified applicants with disabilities?

According to the U.S. Department of Labor, Office of Disability Employment Policy (ODEP), qualified applicants with disabilities can be located through various resources, including Vocational Rehabilitation (VR). In addition, many colleges and universities have coordinators of services for students with disabilities who can be helpful in recruitment and in making accommodations. Employers may also be able to locate qualified applicants with disabilities by contacting local independent living centers or organizations representing people who have specific disabilities.

5. What accommodations do employers have to provide during the application process?

Employers have an obligation to make reasonable accommodations to enable applicants with disabilities to apply for jobs. For example, information about jobs should be available in a location that is accessible to people with mobility impairments. Printed job information in an employment office or on employee bulletin boards should be made available, as needed, to persons with visual or other reading impairments. Preparing information in large print will help make it available to some people with visual impairments. Information can be recorded on a cassette or read to applicants with more severe vision impairments and those who have other disabilities that limit reading ability.

6. Do employers have to make on-line application processes accessible?

Employers must either make their on-line application processes accessible or provide an alternative means for people with disabilities to apply for jobs, unless they can show that doing so would cause an undue hardship.

7. What medical questions can employers ask on job applications?

Employers cannot ask disability-related questions before an offer of employment is made. In general, this means that employers cannot ask questions on a job application that are likely to elicit information about a disability. For example, employers cannot ask whether an applicant has a physical or mental impairment, has received workers compensation, or was ever addicted to illegal drugs.

8. How can employers accommodate applicants with disabilities during pre-employment testing?

The method of accommodation depends on the individual applicant's limitations and the type of test involved, so each situation must be approached on a case by case basis. As a starting point, JAN put together a collection of information on testing accommodations.

9. Do employers have to have job descriptions?

According to the EEOC, the ADA does not require employers to develop or maintain job descriptions. A written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence in determining essential functions along with other relevant factors. However, the job description will not be given greater weight than other relevant evidence.

The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job. It is the employer's province to establish what a job is and what functions are required to perform it. The ADA simply requires that an individual with a disability's qualifications for a job be evaluated in relation to the job's essential functions.

Job Interviews

1. What medical questions can employers ask during a job interview?

Under the ADA, employers may not ask disability-related questions or conduct medical examinations until after they make a conditional job offer to an applicant. This helps ensure that an applicant's possible hidden disability (including a prior history of a disability) is not considered before employers evaluate an applicant's non-medical qualifications.

Employers may not ask disability-related questions or require a medical examination pre-offer even if they intend to look at the answers or results only at the post-offer stage.

Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including asking about an applicant's ability to perform specific job functions, asking about an applicant's non-medical qualifications and skills, and asking applicants to describe or demonstrate how they would perform job tasks. For additional information, visit EEOC's Pre-Employment Disability-Related Inquiries and Medical Exams.

2. Where can employers get information about disability etiquette?

3. What accommodations must be provided for job interviews?

Employers have an obligation to make reasonable accommodations to enable applicants with disabilities to participate in the interview process. Accommodations for interviews may include: an accessible interview location for people with mobility impairments, a sign language interpreter for a person who is deaf, a reader for a person who is blind, and modified testing for a person with a learning disability. For more information about making the job interviews accessible, see A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act.

Post Job Offer

1. What constitutes a valid job offer?

A job offer is valid if the employer has evaluated all relevant non-medical information that it reasonably could have obtained and analyzed prior to giving the offer. There may be times when an employer cannot reasonably obtain and evaluate all non-medical information at the pre-offer stage. If an employer can show that is the case, the offer would still be considered a real offer.

Employers do not have to limit offers to current vacancies; they can give offers to fill current vacancies or reasonably anticipated openings. Employers may also give offers that exceed the number of vacancies or reasonably anticipated openings, but must comply with the ADA when taking people out of the pool to fill actual vacancies.

The employer must notify an individual (orally or in writing) if his/her placement into an actual vacancy is in any way adversely affected by the results of a post-offer medical examination or disability-related question. If an individual alleges that disability has affected his/her placement into an actual vacancy, the EEOC will carefully scrutinize whether disability was a reason for any adverse action. If disability was a reason, the EEOC will determine whether the action was job-related and consistent with business necessity. For additional information, see EEOC's Pre-Employment Disability-Related Inquiries and Medical Exams.

2. What medical questions can employers ask once a job offer has been made?

According to the EEOC, once a conditional job offer is made and before an employee starts work, employers may ask any disability-related questions they choose and they may require medical examinations as long as this is done for all entering employees in a particular job category. For additional information, see EEOC's Pre-Employment Disability-Related Inquiries and Medical Exams.

3. Can employers rescind a job offer without violating the ADA?

In some cases employers may be able to rescind a job offer without violating the ADA. If an employer rejects an applicant after a post offer disability-related question or medical examination and the applicant files a complaint with the EEOC alleging discrimination, EEOC investigators will closely scrutinize whether the rejection was based on the results of that question or examination.

If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is job-related and consistent with business necessity.

In addition, if the individual is screened out for safety reasons, the employer must demonstrate that the individual poses a "direct threat." This means that the individual poses a significant risk of substantial harm to him/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation.

Employees

One of the key non-discrimination requirements of Title I of the ADA is the obligation to provide reasonable accommodation for employees with disabilities. This section provides information about what policies and procedures might be useful, how to recognize and handle accommodation requests, how to determine effective accommodations, and what types of accommodations might be reasonable.

Policies and Procedures

Accommodation Requests

Determining Effective Accommodations

Accommodation Issues

Work-site Accessibility

Job Restructuring

Modified Work Schedules and Leave

Modified Policies

Equipment and Services

Policies and Procedures

1. Are there specific policies and procedures employers must follow when trying to accommodate an employee with a disability?
There are no specific policies or procedures that employers must follow when trying to accommodate an employee with a disability. However, employers may want to develop formal policies and procedures for several reasons.

First, if supervisors, managers, and HR professionals have formal policies and procedures to refer to, they are more likely to handle accommodation requests properly and consistently.

Second, a formal policy that is shared with employees helps employees know what to expect if they request an accommodation and also helps them understand that other employees might be requesting and receiving accommodations.

Finally, formal procedures help employers document their efforts to comply with the ADA.

2. Where can employers get sample accommodation policies and procedures?
JAN and the EEOC have sample accommodation policies and procedures on their websites:

3. Do employers have any obligation to provide temporary accommodations while researching an employee's accommodation request?
According to informal guidance from the EEOC, there is no definite answer to this question; it depends on the situation. In some circumstances, it may be a violation of the ADA for an employer to fail to make temporary arrangements to keep an employee working while the employer researches the employee's accommodation request. From a practical standpoint, employers should try to make temporary accommodations, even beyond the requirements of the ADA, because doing so demonstrates the employer's good faith efforts to accommodate. For example, if an employee cannot perform an essential function of his job and requests an accommodation that requires some research, the employer should consider temporarily removing the essential function until a permanent accommodation can be made. If an employer chooses to do this, the employer should make clear to the employee that the interim accommodation is temporary.

Accommodation Requests

1. How can employers recognize an accommodation request?
According to the EEOC, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation" when requesting an accommodation. Therefore, any time an employee indicates that he/she is having a problem and the problem is related to a medical condition, the employer should consider whether the employee is making a request for accommodation under the ADA.

The EEOC provides the following examples:

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

2. Who should handle accommodation requests?
Initially, the person receiving an accommodation request should respond, even if the response is merely to explain the company's accommodation process and refer the employee on to the appropriate person to handle the request. Employers may want to designate a person to handle accommodation requests and then train all supervisors, managers, foremen, crew leaders, HR representatives, and others in positions that involve supervision of employees to consult with that designated person if they receive an accommodation request.

3. Can employers ask an employee whether he/she needs an accommodation?
According to the EEOC, an employer may ask an employee with a known disability whether he/she needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. For example, an employer could ask a deaf employee who is being sent on a business trip if he/she needs reasonable accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is uncertain about what questions it should ask to ensure that the restaurant is accessible for an employee who uses a wheelchair, the employer may first ask the employee. An employer also may ask an employee with a disability who is having performance or conduct problems if he needs reasonable accommodation.

5. What should employers do when they receive an accommodation request?
According to the EEOC, the employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed. The exact nature of the dialogue will vary.

In many instances, both the disability and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the individual's functional limitations in order to identify an effective accommodation. While the individual with a disability does not have to be able to specify the precise accommodation, he/she does need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individual with a disability may assist the employer in determining the type of reasonable accommodation to provide.

Where the individual or the employer are not familiar with possible accommodations, there are extensive public and private resources to help the employer identify reasonable accommodations once the specific limitations and workplace barriers have been ascertained.

6. What medical information can employers ask for when an employee requests accommodation?
Under the ADA, employers must limit the scope of a medical inquiry in response to an accommodation request. When the disability or need for accommodation is not obvious, an employer may require that the employee provide medical documentation to establish that the employee has an ADA disability, to show that the employee needs the requested accommodation, and to help determine effective accommodation options. Although the ADA limits the scope of medical requests, it does not include specific forms for requesting medical information (see JAN's Sample/Example Policies, Procedures, Forms, and Checklists).

Determining Effective Accommodations

1. How can employers determine effective accommodations?
In most situations, employers should first consult with the employee who requested the accommodation to clarify what the individual needs and identify the appropriate reasonable accommodation. Often the employee will be the best resource for information about accommodation needs.

When the employee does not have all the necessary information or when an employer wants to explore other options, the next step may be to request medical information from the employee's health care provider. By talking with the employee who requested the accommodation and obtaining medical information if needed, the employer should be able to identify what the problem is, which is the first step in determining effective accommodation solutions. The employer needs to know what specific symptoms and functional limitations are creating barriers to accessing the workplace, performing job tasks, or benefiting from an equal employment opportunity. It may also be helpful to know if the employee's limitations are predictable, subject to change over time, stable, or progressive. While this information may not always be known, when available the information can be very helpful in selecting a long term, effective accommodation solution.

Once the employee's limitations and abilities are identified, the next step is to determine how they impact the employee's ability to perform the job. To make this determination, the employer needs to consider what specific job tasks, work environments, equipment, or policies are creating barriers to successful job performance. A good job description is a starting point, but does not always provide all the information needed. Sometimes it may be necessary to go beyond the traditional job description and consider other factors, such as what equipment is used to perform a task, where the work is performed, and why certain policies are being followed.

After the employer identifies the employee's limitations and abilities and determines how they impact job performance, the employer is ready to consider accommodation options.

2. Where can employers get information about the types of accommodations that might be useful?
JAN provides free consulting services for employers seeking accommodation ideas. JAN also maintains an extensive Web site with accommodation idea publications and a Searchable Online Accommodation Resource (SOAR), which allows employers to independently search for accommodation solutions.

3. Who chooses an accommodation?
According to the EEOC, employers get to choose among effective accommodation options. If more than one accommodation would be effective for the individual with a disability, or if the individual would prefer to provide his or her own accommodation, the individual's preference should be given first consideration.

4. What accommodations are not considered reasonable?
Reasonable accommodation does not include removing essential job functions, creating new jobs, and providing personal need items such as eye glasses and mobility aids. Nothing in the ADA prohibits employers from providing these types of accommodations; they simply are not required accommodations.

5. If an employer provides an accommodation the ADA does not require, will that set a precedent for the next time an employee needs the same type of accommodation?
The EEOC encourages employers to go beyond the requirements of the ADA if they choose and will not penalize them for doing so. However, if employers choose to do more than required under the ADA, they should do so in a non-discriminatory manner. For example, employers should not do more only for employees with physical disabilities than they do for people with mental disabilities.

Accommodation Issues

Work-Site Accessibility

a. Do employers have to modify the work-site if they do not have an employee with a mobility impairment?
Under Title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual's work needs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment related activities or benefits.

However, private employers that occupy commercial facilities or operate places of public accommodation and state and local governments must conform to more extensive accessibility requirements under Title III and Title II when making alterations to existing facilities or undertaking new construction.

When making changes to meet an individual's needs under Title I, an employer will find it helpful to consult the applicable Department of Justice accessibility guidelines as a starting point. It is advisable to make changes that conform to these guidelines, if they meet the individual's needs and do not impose an undue hardship, since such changes will be useful in the future for accommodating others. However, even if a modification meets the standards required under Title II or III, further adaptations may be needed to meet the needs of a particular individual. For example: A restroom may be modified to meet standard accessibility requirements (including wider door and stalls, and grab bars in specified locations) but it may be necessary to install a lower grab bar for a very short person in a wheelchair so that this person can transfer from the chair to the toilet.

b. Do employers have to provide accommodations for emergency evacuation?
If an employer has an emergency evacuation plan for employees, the plan should include employees with disabilities. If an employer does not have an evacuation plan for all employees, the employer must consider accommodations on a case by case basis for any employee with a disability who requests accommodations for emergency evacuation.

c. Do employers have to provide transportation to and from work as an accommodation?
An employer is required to provide reasonable accommodations that eliminate barriers in the work environment, not barriers that exist outside the work environment. Therefore, an employer would not be required to provide transportation as a reasonable accommodation for a commute to work, unless the employer generally provides transportation for its employees.

However, where an employer's policy regarding work schedules creates a barrier for an individual whose disability interferes with his or her ability to commute to work, the employer must modify that policy as a reasonable accommodation unless it would impose an undue hardship. For example, an individual who uses a wheelchair and commutes by public transportation may need a later arrival time in inclement weather. From an EEOC informal guidance letter dated June 15, 1993.

Job Restructuring

According to the EEOC, job restructuring includes modifications such as: reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and altering when and/or how a function, essential or marginal, is performed. An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.

b. Do employers have to provide light duty for employees with disabilities?
The term "light duty" has a number of different meanings in the employment setting. Generally, "light duty" refers to temporary or permanent work that is physically or mentally less demanding than normal job duties. Some employers use the term "light duty" to mean simply excusing an employee from performing those job functions that he/she is unable to perform because of an impairment. "Light duty" also may consist of particular positions with duties that are less physically or mentally demanding created specifically for the purpose of providing alternative work for employees who are unable to perform some or all of their normal duties. Further, an employer may refer to any position that is sedentary or is less physically or mentally demanding as "light duty."

In the following discussion, the term "light duty" refers only to particular positions created specifically for the purpose of providing work for employees who are unable to perform some or all of their normal duties. An employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation. The principle that the ADA does not require employers to create positions as a form of reasonable accommodation applies equally to the creation of light duty positions. However, an employer must provide other forms of reasonable accommodation required under the ADA.

For example, subject to undue hardship, an employer must: (1) restructure a position by redistributing marginal functions that an individual cannot perform because of a disability, (2) provide modified scheduling (including part time work), or (3) reassign a non-occupationally injured employee with a disability to an equivalent existing vacancy for which he/she is qualified.

Accordingly, an employer may not avoid its obligation to accommodate an individual with a disability simply by asserting that the disability did not derive from an occupational injury. On the other hand, if an employer reserves light duty positions for employees with occupational injuries (does not create new light duty jobs when needed), the ADA requires it to consider reassigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation. This is because reassignment to a vacant position and appropriate modification of an employer's policy are forms of reasonable accommodation required by the ADA, absent undue hardship.

An employer cannot establish that the reassignment to a vacant reserved light duty position imposes an undue hardship simply by showing that it would have no other vacant light duty positions available if an employee became injured on the job and needed light duty.

Note that an employer is free to determine that a light duty position will be temporary rather than permanent.

Modified Work Schedules and Leave

In its publication on Reasonable Accommodation and Undue Hardship the EEOC discusses modified work schedules and leave as accommodations. However, some issues regarding work schedules and leave are not addressed in the guidance.

a. Do employers have to change full-time jobs to part-time as an accommodation under the ADA?
Although part-time work is a form of reasonable accommodation, employers probably do not have to change existing full-time jobs to part-time as an accommodation under the ADA. According to informal guidance from the EEOC, when an employee is asking to cut his/her hours significantly, then, in essence, the employee is asking for a reassignment to an existing part-time job. The precise legal rationale will be debated in courts for awhile, but any way you look at it you fundamentally change a job when you significantly cut the hours (e.g., in half). One argument is that cutting a job in half necessarily entails cutting essential functions if "essential function" embodies the amount of work to be accomplished. You could also say that you would be cutting the production standard, which is not simply an hourly standard, but also a standard that measures how much should be produced in a full-day.

Another legal argument is to say that significantly reducing the hours of a job would be changing a qualification standard of the job; specifically, the ability to work full-time. The employer should always be able to show that it created a full-time position because there is sufficient work that requires working full-time. As such, the qualification to work full-time meets the business necessity standard, and thus it is not a reasonable accommodation to cut the hours in half.

That is why a request for part-time work by an employee often ends up really being a request for a reassignment to an existing part-time job. If there is only a minimal cut in hours, it might be possible to show that the essential functions, the productivity standard, and/or a qualification standard of the position will not be changed, despite the slight decrease in hours. In this case, an employer might need to eliminate marginal functions to permit the employee to complete all the essential functions.

b. If an employer chooses to change a full-time job to part-time, does the employer have to maintain the employee's full-time pay and benefits?
No, not under the ADA unless the employer maintains pay and benefits for employees without disabilities whose jobs change from full-time to part-time. Employers should consider whether other laws apply, such as wage and hour laws.

c. How much leave time must an employer provide as an accommodation under the ADA?
Unlike the Family and Medical Leave Act (FMLA), which requires covered employers to provide up to 12 weeks of leave, there is no specific amount of leave time required under the ADA. Instead, leave time is approached like any other accommodation request: the employer must provide the amount of leave needed by the employee unless doing so poses an undue hardship.

Modified Policies

a. Can employers apply a no-fault attendance policy?
No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.

b. Can employers have 100% restriction-free policies?
According to informal guidance from the EEOC, requiring an employee to be 100% restriction-free can violate the ADA when applied to an employee with a disability. Although some courts have characterized such policies as per se violations of the ADA, most courts require that the employee meet the definition of disability before being allowed to challenge the policy under the ADA. If an employee does not meet the first two prongs, he may be able to show that his employer regarded him as having a disability, typically by relying on evidence that the employer would not let him return to his regular job or any other job in a class of jobs or broad range of jobs in various classes.

c. Can employers enforce conduct rules?
An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. An employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination. Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability.

d. Do employers have to modify dress codes or hygiene requirements as an accommodation?
Most authorities (including EEOC) treat dress codes and hygiene requirements as "conduct rules," but classify them as the type of conduct rule that must be justified as job-related and consistent with business necessity before being enforced. Therefore, if a person with a disability requests modification of a dress code or hygiene requirement as an accommodation, an employer must consider allowing the modification unless the employer can show that the dress code or hygiene requirement is necessary for the job at issue.

e. Do employers have to consider allowing employees to work at home as an accommodation?
Yes. Changing the location where work is performed may fall under the ADA's reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee's preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective. For more information about work at home as a reasonable accommodation, see Work at Home/Telework as a Reasonable Accommodation.

Equipment and Services

a. If an employer requires work equipment, such as steel-toed work boots or stethoscopes, and an employee with a disability needs specialized equipment that costs more than the regular equipment (e.g., customized boots or amplified stethoscopes), does the employer have to pay the extra cost for the specialized equipment?
If the equipment or device is a personal-use item, then the employer does not have to provide it. For example, if an employee has to wear a special type of boot all the time, the employer does not have to pay for it. Common items that fall into this category are hearing aids, glasses, and medication. On the other hand, if the boots are necessary only for work and constitute an accommodation, the employer would have to pay the entire cost of the boot, unless it would be an undue hardship to do so. There is also a tool of the trade issue here. If the boots constitute a tool of the trade, that is the boots are necessary to get the job done, then the employer must pay for the specialized boot as a form of equal treatment if the employer provides the boots for other employees. However, if other employees buy their own boots and they own them, then an employee with a disability can be required to buy his own boots even if they cost more.

b. If an employee has a limitation such as a hearing impairment, but chooses not to purchase a hearing aid, does the employer then have an obligation to provide a hearing aid at work?
The fact that an individual chooses to forego personal use items at home (a wheelchair, hearing aids, protective clothing) does not mean that such items become work-related because they are needed on the job. The limitations prompting the need for the hearing aids exist on and off the job and thus they remain personal use items. However, employers may still have to provide a reasonable accommodation even though they are not obligated to provide personal use items. For example, an employer might have to provide an amplified telephone or alternative means of communication for an employee with a hearing impairment who does not choose to use hearing aids.

c. Do employers have to allow employees with disabilities to use personal need items (canes, walkers, wheelchairs, hearing aids) or services (personal attendant care, service animals) in the workplace?
Allowing an employee with a disability to use a personal need item or service in the workplace is a form of reasonable accommodation. For example, it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work, even though the employer would not be required to provide a guide dog for the employee.

d. Do employers have to provide personal assistance services (PAS) under the ADA? The term PAS can include a wide variety of services. The Ticket-to-Work and Work Incentives Improvement Act defines PAS as "a range of services provided by 1 or more persons designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform without assistance if the individual did not have a disability." Under the ADA, reasonable accommodation can include PAS in the form of work-related assistance, but generally does not include PAS in the form of personal attendant care at the work-site. Work-related PAS can include task-related assistance at work, such as readers, interpreters, help with lifting or reaching, page turners, a travel attendant to act as a sighted guide to assist a blind employee on occasional business trips, and re-assignment of non-essential duties to co-workers. For additional information, see JAN's information on personal assistance in the workplace.

e. Do employers have to provide personal attendant care for work-related travel?
According to informal guidance from the EEOC, the ADA does not require employers to provide personal attendant care on the job because reasonable accommodation does not require employers to provide personal need items or services. However, when an employee travels for work and incurs personal attendant care expenses beyond his/her usual expenses when not traveling for work, there is a good argument that the employer must pay the added costs.

f. What if coworkers voluntarily assist employees with disabilities with personal needs? For example, coworkers assist an employee who uses a wheelchair to transfer from her car into her wheelchair when she arrives at work. Do employers have to allow coworkers to assist or can they prohibit them from doing so?
According to informal guidance from the EEOC, in general employers can decide how employees use their time at work. Therefore, employers can probably prohibit coworkers from providing personal assistance to employees with disabilities without violating the ADA outright. However, from a practical standpoint, the EEOC recommends that employers take a case by case approach and consider allowing coworkers to voluntarily assist employees with disabilities when the employer does not have any liability for resulting injuries and the assistance does not substantially disrupt the workplace.

The EEOC suggests the following approach: When deciding whether to allow coworkers to provide personal assistance, employers may first want to determine whether they have any liability for resulting injuries. To make that determination, employers should check with appropriate legal advisors - the EEOC does not advise employers about the extent of their liability for on the job injuries.

If an employer determines that it is liable for injuries, it can prohibit coworkers from providing the personal assistance. If, on the other hand, the employer determines it is not liable, then the employer should look at other factors such as how much disruption there will be to the workplace if coworkers are allowed to provide personal assistance. If not liable and little if any disruption would result, then the employer should consider allowing coworkers to assist an employee with a disability, at least with minor activities such as taking off and putting on a coat and eating.

When more difficult assistance is needed, such as toileting transfers or administering medications, the employer may want to make sure that coworkers are properly trained before allowing them to provide this type of assistance. In contrast, under the ADA's reasonable accommodation obligation employers must consider allowing employees with disabilities to have their own personal attendant in the workplace, absent undue hardship.

g. Is it a reasonable accommodation to provide a job coach?
Yes. An employer may be required to provide a temporary job coach to assist in the training of a qualified individual with a disability as a reasonable accommodation, barring undue hardship. An employer also may be required to allow a job coach paid by a public or private social service agency to accompany the employee at the job site as a reasonable accommodation. From EEOC's Psychiatric Disabilities and the ADA.

h. Do employers have to provide accommodations for on-the-job travel such as driving to home visits?
According to the EEOC, employers must consider accommodations such as alternative methods of transportation for work-related travel when driving is not an essential function of the job. For example, an employer must consider alternative transportation for a social worker who cannot drive due to vertigo; the essential function is completing the home visits, not driving.

Employees on Leave and Former Employees

The ADA requires employers to provide accommodations to ensure that employees with disabilities receive equal benefits of employment. For employees on leave and former employees, benefits of employment may include health and disability insurance, job protection, or call-backs from layoffs.

Health and Disability Insurance

1. Does the ADA apply to employer-sponsored benefits such as health insurance and short and long term disability?

2. When employers offer long term disability insurance, can they condition the receipt of payments on termination of employment? Does this potentially violate the ADA's requirement that employers consider holding jobs for people who take leave as an accommodation (assuming the employee has a disability and plans to return to work at some point)?

Generally this practice does not violate the ADA. Long term disability is a benefit of employment that employers are free to offer or not. As such, employers set the parameters of the benefit. An employer might violate the ADA if the employer's purpose was to evade its obligations under the ADA.

3. Can an employer terminate or reduce an individual's health insurance benefits because he or she is working fewer hours due to a disability?

Yes, according to the EEOC. The ADA does not prohibit the adoption of health insurance eligibility requirements that do not discriminate on the basis of disability, as long as such requirements are applied in the same manner to all employees. A requirement that employees work a certain number of hours to remain eligible for health insurance benefits does not discriminate on the basis of disability. It limits both individuals with and without disabilities. Thus, for example, an employee who works reduced hours for some other reason, such as attending school, would also be subject to a reduction or loss of health insurance benefits. From an EEOC informal guidance letter dated January 4, 1995.

Bonuses and Promotions

1. If an employer bases bonuses or promotions on employee performance records and attendance, can the employer penalize an employee for work missed during leave taken as a reasonable accommodation?

No, according to the EEOC, to do so would be retaliation for the employee's use of a reasonable accommodation to which he/she is entitled under the law. Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a reasonable accommodation.

Reductions in Force and Layoffs

1. Does the ADA protect employees with disabilities from termination during a reduction in force or from being laid off when business is slow?

Although the ADA protects individuals with disabilities against discrimination on the basis of disability, employees with disabilities are not protected against non-discriminatory layoffs. When deciding to terminate or layoff employees, employers need to make sure that their decisions are based on business needs, rather than on a desire to get rid of employees with disabilities.

For example, employers can base their layoff decisions on such non-discriminatory criteria as productivity, seniority, or job category. However, if an employer bases its layoff decisions on productivity of employees, it cannot penalize employees for accommodations that were provided under the ADA.

The EEOC gives the following example: Company X is having a reduction-in-force. The company decides that any employee who has missed more than four weeks in the past year will be terminated. An employee took five weeks of leave for treatment of his disability. The company cannot count those five weeks in determining whether to terminate this employee.

2. Are former employees covered by the ADA?

Former employees are protected by the ADA when they are subjected to discrimination arising from the former employment relationship. For example, an employer cannot release confidential medical information about a former employee.

Private Employers

Private Employers

Private employers with 15 or more employees are covered under Title I of the Americans with Disabilities Act. Title I requires covered employers to provide equal employment opportunities to qualified individuals with disabilities. Below are publications and resources to help private employers understand their rights and responsibilities and maximize the potential of their workforce.

Visit our “FAQs for Employers” page for answers to a few common questions, and check out our "Publications" page to find ADA documents and our "Resources" page to find links to information on a variety of employment-related topics.

State and Local Government Employers

State and local governments are covered employers under the Americans with Disabilities Act regardless of how many employees they have. State and local governments are required to provide equal employment opportunities to qualified individuals with disabilities.

Below are publications and resources to help state and local government employers understand their rights and responsibilities and maximize the potential of their workforce.

Visit our “FAQs for Employers” page for answers to a few common questions, and check out our "Publications" page to find ADA documents and our "Resources" page to find links to information on a variety of employment-related topics.

Federal Employers

Federal Employers

The Rehabilitation Act (link) prohibits discrimination on the basic of disability in federal employment, and in the employment practices of recipients of federal fund and many federal contractors. Although the complaint and administrative procedures differ slightly under the Rehab Act, the basic provisions and requirements are the same as those of the ADA. Court rulings in ADA cases and guidance materials on the ADA can be instructive in applying the provisions of the Rehabilitation Act. Below are publications and resources to help federal employers understand their rights and responsibilities and maximize the potential of their workforce.

Frequently Asked Questions

General Frequently Asked Questions for All Employers

1. Do I have to build a ramp or alter my facility to make it accessible even though I don’t have any employees with disabilities?

The ADA does not generally require an employer to make structural improvements in existing facilities. Architectural accessibility is addressed on a more individualized basis in the employment context. An employer may need to alter facilities in order to provide a “reasonable accommodation” to a specific worker with a disability; such alterations should meet the worker’s individual needs.

It is important to note that an employer may be covered by other parts of the ADA (or other laws) and subject to structural accessibility requirements that are not related to employment. Both commercial facilities (such as warehouses and factories) and public accommodations (businesses open to the general public, such as retail stores, restaurants, etc.) are subject to accessibility standards for new construction and alterations. Additionally, public accommodations must remove barriers in existing facilities when it is readily achievable to do so. (Visit our “Retail/Services” page for more information on public accommodations.)

Federal, state and local governments are also subject to accessibility standards for construction and alterations, and have obligations to ensure access in general to their programs and activities.

2. I have heard that I may have to provide a “reasonable accommodation” for a person with a disability applying for a job, like hiring an interpreter for a job interview. Why do I have to provide accommodations for people who don’t even work for me (yet)?

The ADA requires the provision of reasonable accommodations during the application process so that candidates with disabilities have an opportunity to be judged – like other candidates – on the qualifications, skills, talents, and experience relevant to the job. Reasonable accommodations are designed to ensure that applicants are not eliminated or unfairly disadvantaged in the job competition due to disability-related barriers that can reasonably be overcome by the employer.

Keep in mind that applicants with disabilities are required to meet the same legitimate qualification standards as other applicants (for example, if the job requires a certain educational degree, certification, or professional license, you don’t have to consider an applicant who lacks them just because the individual has a disability).

3. I want to maintain a safe workplace and treat everyone equally. Can I ask all job applicants if they have a disability before I consider other factors?

No. There is no evidence that employees with disabilities pose greater safety risks in the workplace than employees without disabilities. Research and surveys conducted by both government and industry consistently find that employees with disabilities perform their jobs as well and as safely as their co-workers without disabilities.

The ADA generally prohibits employers from asking any disability-related questions or requiring any kind of medical examinations before making a real job offer. This helps ensure that candidates are evaluated on job-related factors and not on assumptions, fears, or stereotypes, particularly if hidden disabilities are revealed before other factors are considered.

(There are other considerations for federal employers and certain federal contractors who are subject to the Rehabilitation Act. See the Federal Employers section below.)

Once real job offers are extended, disability-related questions may be asked, and medical examinations may be conducted, but only if all candidates entering the job category are subjected to the same questions and/or exams. You can’t ask disability-related questions or require medical exams in order to get information only from certain individuals because you know or suspect they have disabilities.

Employers do not have to hire or retain individuals who pose a direct threat to the health or safety of themselves or others. A direct threat is a significant risk of substantial harm that can not be eliminated or reduced to an acceptable level through the provision of reasonable accommodations. The determination that an individual poses a direct threat must be based on an individualized assessment and valid, objective evidence.

4. We have always given drug tests to all applicants before we make job offers. Do we have to stop doing that?

No. Tests to determine if individuals are currently illegally using drugs are not considered “medical exams” under the ADA, and can therefore be given prior to making job offers as long as the scope of the tests is limited to identifying current illegal use of drugs.

Employers would be well advised, however, to be cautious about how results and related information are handled. It would be prudent to limit the information reported to those who will make decisions about job offers to the relevant result (“pass” or “fail”).

For example, many individuals properly use prescription medications that may result in positive results on drug tests. Individuals can provide information to prove that the test result is based on legal drug use. The information about the prescription is irrelevant to the decision about whether to offer an individual a job, and since it may suggest the presence or nature of a disability, the decision maker is better off without it. The individual has “passed” the drug test, and this is all the decision maker needs to know at this point.

5. We give a battery of written tests to all applicants to help us select the best candidates. Does the ADA affect our ability to do that?

First of all, it is important to ensure that no medical tests are administered prior to making a job offer. There are written tests that are designed to indicate the presence, nature, or extent of various impairments, such as learning disabilities or psychiatric conditions. These tests are typically administered and/or interpreted by medical professionals and produce evidence related to diagnosis or treatment. Such tests should not be administered in the pre-offer stage of employment.

Some tests, though, even those that may seem “psychological” in nature, are merely designed to identify traits such as honesty, and are not medical tests.

Non-medical tests given prior to offering a job should be tailored to the relevant job or class or jobs so that the information obtained is meaningful in the selection process. Tests should measure the knowledge, skills, or traits that will actually be needed on the job. If a test criterion is used to eliminate a candidate with a disability, the criterion must be job-related and consistent with business necessity.

A reasonable accommodation may be needed to ensure that an applicant with a disability has an equal opportunity to obtain relevant and meaningful test results. For example, the ability to take a test in the standard written format may or may not be critical to the validity of the test result. It depends on what the test is designed to measure and how it relates to the job. The test result may be just as meaningful if the individual takes the test orally.

Testing accommodations should be carefully considered so that the individual has an opportunity to demonstrate the level of knowledge, skills, or traits that are being identified or measured, without either advantage or disadvantage compared to other candidates.

6. My new employee just asked me for an accommodation, but he never mentioned anything during the interview or application process. Do I still have to consider his request?

The ADA doesn’t require an individual to disclose the existence or nature of a disability during the job application process. There are many reasons why an individual may choose not to do so, ranging from fear of discrimination to a lack of knowledge about specific job duties or barriers that may exist in the workplace.

Additionally, employees may acquire disabilities through accidents, illnesses, or the process of aging. Individuals can not be denied consideration simply because they didn’t have, or didn’t disclose, a disability before they were hired.

Employers can help applicants understand the nature of the job and the workplace by providing detailed, up-to-date information about job duties, job demonstrations, or tours of the worksite. Employers, by taking the time to provide comprehensive information, may help applicants determine if particular jobs are a good match for them, thereby reducing the likelihood that an individual, with or without a disability, will accept a job that turns out to be unsuitable.

7. If I provide a “reasonable accommodation,” like a flexible schedule, to an employee with a disability, my other employees may resent it. How can I explain it to them?

The ADA generally prohibits covered employers from disclosing information about disability to an individual’s co-workers. Although some individuals with disabilities choose to share such personal information with colleagues, an employer may not do so.

If asked or confronted with complaints from co-workers, an employer may simply explain that there are laws that require employers to guard individuals’ personal information. Many workers will appreciate an employer which takes such matters seriously, understanding that their own privacy will be respected as well.

8. I have an employee with a disability who wants to leave early every Friday to attend her son’s soccer games. Does the ADA require that I grant this request?

The employee’s requested schedule adjustment appears to be unrelated to her disability, and therefore would not be considered a “reasonable accommodation.” Reasonable accommodations must be related to the individual’s disability.

If the employee’s non-disabled co-workers are allowed to make similar scheduling adjustments, the employee with a disability should not be denied the same consideration, but she does not need to be granted additional latitude in this regard merely because she has a disability.

9. My company has performance and conduct rules that address a variety of things, ranging from production quotas to violence in the workplace. Can I expect employees with disabilities to comply with these rules?

Yes, generally employees with disabilities can be held to the same standards as their co-workers.

Some standards are related strictly to job performance (like a production quota), and others to general conduct (such as a prohibition against violence in the workplace). Sometimes, performance standards include “conduct-like” elements, as employers often establish performance evaluation criteria that are both quantitative (e.g. producing two reports a week) and qualitative (e.g. working well with others).

Rules and standards, of course, must not be plainly discriminatory (e.g. “employees must be free of psychiatric conditions to work here”) nor designed to eliminate qualified candidates or employees with disabilities for no legitimate reason (e.g. requiring applicants for a job that does not entail driving to have a valid driver license because you think it will help you avoid hiring anyone with a seizure disorder).

Additionally, even if rules are legitimate, they can not be applied or enforced in a discriminatory manner (firing a worker with a disability for cursing on the loading dock when such language in that setting is generally tolerated, despite the existence of a general rule that prohibits profanity in the workplace).

If an employee’s disability actually causes or contributes to his inability to meet a performance or conduct standard, and the standard is job-related and consistent with business necessity, you should consider whether a reasonable accommodation will enable the employee to meet the standard. Keep in mind that the purpose of reasonable accommodations is to enable workers with disabilities to meet legitimate standards, not to excuse them from doing so.

10. My company is small and I have an employee who has been on leave for 18 months due to her disability. I want to accommodate her, but it is becoming a strain. How long do I have to keep her job available for her?

The obligation to provide reasonable accommodations is not unlimited. Employers do not have to provide an accommodation that poses an undue hardship (something that requires significant difficulty or expense).

The ADA does not establish any specific formula to determine whether an accommodation is “reasonable” or whether it is an “undue burden.” Rather, the ADA establishes guidelines to help employers and employees find solutions in their own situations.

There are many factors to consider in determining whether an accommodation is reasonable, including net cost in relation to the employer’s resources (after utilizing any available tax incentives or funding supports), disruption to the operation of the business, etc. Communication is vital. Employers should investigate possibilities and involve the employee in the process, along with experts and professionals (the employee’s doctor, therapists, rehabilitation consultants, legal advisors, accessibility specialists, etc.) who may be able to contribute.

Additional FAQs for Federal Employers

1. What’s the difference between the ADA and the Rehabilitation Act?

Some of the distinctions related to employment have to do with administrative procedures and reporting requirements. The most fundamental difference, however, is that section 501 of the Rehabilitation Act requires federal employers to have an affirmative action plan to hire and advance individuals with disabilities.

2. I really want to hire workers with disabilities, so may I ask job applicants if they have disabilities?

The Rehabilitation Act has restrictions on disability-related questions (similar to the ADA); however, employers engaged in affirmative action may invite applicants or employees to voluntarily self-identify as individuals with disabilities. Employers must make it clear that the invitation is related to affirmative action, that self-identification is strictly voluntary, and that the information will be kept confidential. Additionally, it must be clear that self-identification will be of benefit to the individual. The individual’s choice to self-identify (or not to self-identify, even where a disability is apparent) can not be used against the individual.

1. Is there any difference between the way the employment provisions of the ADA apply to private employers and the way they apply to state and local government employers?

State and local government employers have the same obligations to applicants and employees with disabilities that covered private employers do. There are differences that have to do with the recourse and remedies that are available to individuals who allege discrimination.

Punitive damages are not available against state or local government employers. (Punitive damages are designed to punish employers who engage in discriminatory conduct that is malicious or recklessly indifferent to individuals’ federally protected rights.)

Additionally, court decisions related to the constitutionality of the ADA have further limited the availability of monetary damages that may be obtained from state employers.

Individuals bringing private lawsuits against state employers can not obtain monetary damages of any kind. However, individuals may sue state officials in their official capacities to obtain injunctive relief (hiring, reinstatement, policy changes, etc.).

It is important to note that the federal government is not limited the way private individuals are in this respect; the federal government may seek monetary damages against states for violations of the ADA’s employment provisions.

Additionally, the immunity does not apply to local governments. Individuals as well as the federal government may obtain monetary damages against local government employers such as cities and counties.